A power of attorney is a document that permits a person to act on behalf of someone else. The power of attorney becomes ineffective if, due to limited mental capacity, the grantor or donor is incapable of managing their own affairs. These powers are helpful if the donor is abroad for extended periods of time and wishes someone to assist with their affairs.
What is an enduring power of attorney?
An enduring power of attorney (EPA) is a document that permits a person to act on behalf of someone else when due to limited mental capacity the grantor or donor is incapable of managing their own affairs.
The donor of the power i.e. the person who gives the power, completes the EPA when they are mentally capable of understanding what they are doing. The person/ persons appointed in the EPA i.e. the attorney/ attorneys may only act under the EPA when the donor has become or is becoming mentally incapably of managing their affairs. The attorney must register the enduring power of attorney document with the Wards of Court office of the High Court. It is only then that the attorney can act.
Creating an enduring power of attorney
Because the enduring power of attorney involves the transfer of considerable powers from you to another person, there are a number of legal safeguards to protect you from abuses. The procedure for executing the enduring power of attorney is complex and requires the involvement of a solicitor and a doctor. The enduring power can only come into effect when certain procedures have been gone through and the courts have a general supervisory role in the implementation of the power.
Who should be appointed my attorney?
Anybody can be your attorney.
However the legislation governing enduring powers of attorney sets out strict rules on who must receive notice of creation of an enduring Power of Attorney. Firstly, the spouse if surviving and mentally capable, then children and if none of those people are available it is nieces or nephews.
You can also have more than one attorney.
Another way to overcome some family misgivings is to appoint a child as a ‘consultative’ person, then they are involved in the implementation of the enduring power of attorney.
How do I create my enduring power of attorney?
You need to consult your solicitor as it is a document that requires careful review and advice. It needs to be signed by you as the donor, by the attorney/ attorneys, by your doctor and by your solicitor.
Why is my doctor involved?
Your doctor is involved to verify that in his/her opinion you had the mental capacity at the time that the document was executed to understand the effect of creating the power.
What if my family want me to create an enduring power of attorney but I don’t want to, what can I do?
You are under no obligation to create an enduring power of attorney, the choice is entirely yours.